[Senate  Hefort,  No.   16,] 
SENATE,  January  14,  I SG4.— Ordered  to  be  priutcd. 
[By  Mr.  Sem.vies.1 


REF^ORT 


OF    THE 


,  COMMITTEE  ON  THE  JUDICIARY, 

O'l  iSenale  billy  No.  150. 


The  Committee  on  the  Judiciary,  to  whom  wa^  referred  the  bill  (S. 
15!),)  ''  to  limit  and  define  the  term  of  office  of  the  Secretary  cr  prin- 
cipal officer  of  c.ich  of  the  Execuiive  Departmc  its  established  by  the 
several  acts  entitle!  *  An  act  to  organize  the  Department  of  State,* 

*  An  act  to  e>tab2ish  the  Treasury  Department,'  ♦  An  act  to  establish 
the  War  Department,'  *  An  act  co  e.'tablifh   the  Ntvy   D 'partment,' 

*  An  act  to  establish  the  Post-Office  Department,'  '  Au  act  to  ori^amzc 
and  esti-bKsh  .^n  Executive  Department,  to  be  known  as  the  Depart - 
ment  of  Justice,'  al!  of  which  acts  were  apmoved  Februi'y  21,  Ititil," 
having  duly  considered  said  bill,  respectfully  rep  »  t  the  same  to  the 
Senate  with  amendments  tnd  recommend  that  tht  bill,  iis  amended,  do 
pass. 

The  cocnmittee  entertain  no  doubt  as  to  the  constitution.iiity  of  the 
proposed  measure.  The  first  sectkn  of  the  hill  provides,  that  the 
term  of  office  of  the  Secretary  or  principal  cfficer  of  each  one  of  the 
several  Executive  Departments,  shall  be  for  the  same  period  of  time 
as  that  of  a  member  of  the  House  of  ReprcKcutatives,  subject  to 
removal  at  tho  pleasure  of  the  I'resident,  and  shall  expire  at  the  end 
of  each  Congresti  of  the  Coifedeiate  States.  The  second  section 
proposes  to  inaugurate  the  contemplated  change  in  the  term  of  office 
of  the  heads  of  departments  on  the  18th  February,  IbSl,  the  day  on 
which  the  term  of  the  present  Congress  expires  ;  and  heuco  oa  that 
day  are  vacated  the  commissions  of  those  now  in  office. 


2 

As  the  liw  now  strands,  the  Secretaries  hold  their  offices  for  an 
jnd  -finite  pori  •!  of  lime,  sn'-jcof,  however,  to  removnl  at  the  pleasure 
©r  the  l'io>ileiit.  A  Sci-retaiv  once  nppainteil,  hohU  liis  o!lioe  until 
removi'il.  The  le;^il  result  i->.  ihit  ;\  Si3crLt:iry  when  once  iippoinieJ 
ami  confirjned.  uiij^ht  h'>hl  hi-«  oQioe  fur  twen'y  yeu-8,  or  fur  life, 
unless,  in  course  of  the  successive  changes  of  President,  an  incoming 
Pre-ident  mi;];ht  choose  to  remove  him.  The  practical  result  of  such 
a  stiite  (tf  thin^^s  would  he.  that  incoming  Presidents,  hy  successively 
adopting;  the  Secretaries  of  the  nntg-.ing  President,  could  retain  them  in 
ofTue  for  twenty  year.-?  or  more  in  ^piteo^  tiie  united  opposition  of  the 
States  as  represented  in  the  Senate.  This  would  lead  to  a  practical 
nullificition  of  t'ne  power  of  the  Ssnatc  to  revise  the  nominations  hy 
the  President  of  the  principal  olhcers  of  the  E.K.cutive  Depiriraents. 
It  seems,  tliep-forc,  th  it  the  term  of  olIi.^e  of  the  principal  ofPioers  of 
the  E.KCcutive  Departments  ouglit  to  ho  a  matter  of  legislative  discre- 
tion, ad  is  the  creation  or  ostaMishment  of  the  DepartuK-nts  them- 
selves It  is  true  that  the  Oonstitutioa  contemplates  the  cstahlish- 
ment  of  E.Kecutive  Dopartm'nt>*,  and  the  creation  of  heads  or  princi- 
pal olTicers  thereof,  but  it  is  silont  as  to  the  number  of  departments 
to  be  created,  the  duties  to  be  a-signed  to  each,  or  the  functions  to  bo 
performed  by  the  principal  oHicers  therein,  and  submits  the  entire 
subject  to  the  wisdom  of  the  Congress,  with  the  exception  of  a  few 
duties  specifically  mentioned,  to  whicli  attention  will  be  hereafter 
directed. 

The  conniittee  are  of  opini  >n,  that  a  "  Cabinet"  in  the  sense  in 
vhi:h  that  term  is  used  in  C  i^lm  1,  is  uakno.vu  to  our  Coa  .titu  io  i. 
The  Secretaries  or  heads  of  D.'|)artments  are  improperly  and  loosely 
denominated  "  Cibinet  officers.  '  A  '•  Cabinet"  is  understood  to  be  a 
Connoil  of  State  or  Privy  Council,  authorized  by  the  Constitution  or 
th  •  lavv  to  assemble  and  delibera'e  on  questions  of  State,  with  a  view 
of  a  [vising  the  President.'  Neither  the  Constitution,  or  the  laws 
creatiiM'  the  L-l.xecutive  Deputments,  contemplate  or  authorize  sueh 
an  advi.-iin'^  Ijudy.  Such  as.semblies  it  is  iVue,  have  been  held  by 
Prc.-idents  of  the  United  States,  .-nd  it  i>  believed  by  the  President 
of  th<!  Cotifedcrates  States,  but  they  are  the  mere  creations  of  execu- 
tive pleasuie,  and  may  be  comp-se  I,  if  the  President  bhould  think  fit, 
of  unofficial  persons,  or  be  dispensed  wiih  entirely.  On  the  other 
hand,  the  Ministry  or  Cabinet  of  Great  Britain  is  a  bod>  known  to 
the  Constitution  of  that  country,  and  is  responsible  for  the  acts  of  tho 
Crown.  In  former  years,  ilie  Privy  Council  of  England  was  the 
constitutional  adviser  of  the  Kiiu  in  all  weighty  matters  of  State. 
Mr.  llalliui  8  lys  that  "the  Msolutions  of  ihe  Crown,  whether  as  to 
^•rei  -11  alliances  or  the  issuing  of  orders  and  proclamations  at  homo, 
-i  any  other  overt  act  of  Uovernment,  were  not  finally  taken  withouc 
;he  deliberation  and  assent  of  that  boiy  (tho  Privy  Council),  wh'.vn 
tlie  law  recognized  as  its  sworn  and  notorious  c*  unscllors."  Mr. 
liilliin  further  informs  us,  tiiat  the  Privy  Council,  in  consequence  of 
'he  nuuil>cr  of  persons  composing  it,  fell  into  disuse.  A  Cabinet 
composed  of  a  lew  of  the  prominent  i.ffijers  of  Government  w.is  prac- 
tically substituted  in  the  place  of  the  Pnvy  Council.     In  the   reign 


lRf\: 


3 

of  William  Third,  the  Mistlnction  of  tho  Cabinet  from  the  Privy 
Couai.Ml,  and  the  eKijlii-iion  of  the  litter  from  all  hu.^in.cs^  of  Srite, 
bo'ciine  fully  estaShshed.  The  feeling  in  favor  of  the  oM  constiti:- 
tionil  practice  occasioned  tho  iiitr-t  luetion  into  the  act  of  sectlemi^n*-, 
p:isscd  (luriiicj  the  rcipjn  of  Qiit^cu  Anno,  of  a  cl  m-e  req'iirinj;  tli:.t 
on  the  accession  of  tlie  IToiHe  of  II  mover  all  regulitions  up  n  in  it- 
tor-(  of  pulilie  policy  f-houM  he  dch;jted  in  Privy  Council  an  I  fsi.'ned 
by  t'uMii.  hut  tlii-i  clause  was  rcpenled  two  ymrs  after;  since  that 
poiioj,  the  Cahinet  of  Knghnul  hus  been  compo'^ed  of  the  principal 
ofTiccrs  of  the  (irovernment.  a:id  has  succc'ded  ti  all  the  respon-^ihility 
of  the  Privy  Oouncil.  The  principU  ui(Mnl)er-<  com- osing  the  ^^l^li-h 
Cahiner,  are  the  Lord  Chincellor  the  three  Secretaries  of  SMte  for 
Home.  Coh)ni:il  and  Foreij^u  Affiiir^.  oml  the  Chancellor  of  thj 
Exche<|uer.  Other  hends  of  Departments  are  sometimes  called  to  the 
Cii!)iiii'r,  as  the  First  Lord  of  the  Admiralty,  Pijstniastcr  Gencr;d, 
President  of  tlie  Board  of  Trade.  Pn-.^idcnt  (  f  the  Board  of  Control, 
Paymaster  General,  Secietary  of  War.  Chief  Score  a ry  of  lrelai:d. 
Muster  of  t!.c  Mint,  and  Jill  wtio  have  lieen  Cabinet  Ministers  foi-  the 
last  twelve  year«!.  In  the  mini-try  of  Karl  Grey,  the  Earl  of  Carlisle 
had  a  seat  in  the  Cabinet  wi  hout  holding  any  office.  The  Com- 
mander-in-Cliicf  was  a  member  of  the  Caliinot.  in  IH45.  Linl  Mans- 
field, when  Ciiief  Justice,  wis  a  inenber  of  the  Cabinet,  but  these  are 
all  exceptional  cases.  The  Cabinet,  as  siieccssor  of  the  Ihivy  Council, 
constitutes  the  Ministry,  ami  is  a  constitiuional  body,  directing 
public  affairs  and  rosponsil/le  to  Parliiment;  hence,  thon;:h  the  King 
may  dismiss  Ids  mii.i-ters,  the  step  is  r;.r<'ly  hazarded,  if  the  ministry 
be  sufiported  by  n  majoity  of  the  House  of  Commons;  and  on  the 
other  hand,  a  mini  try  may  letain  their  posts  in  spivO  of  the  dislike 
of  the  King.  A',  the  time  of  ihefurmaii  >n  cf  the  Constitution  of  the 
Utiited  States,  an  cIToit  was  made  to  <stabli-,h  a  constitutional  Privy 
Council  or  Cabinet.  G  )uverneur  Morris,  seconded  by  .\[r.  Pinckney, 
submitted  in  the  Federal  (■onvcntioii  of  17.*>7,  the  following  proposi- 
tion-*: 

"  To  assist  the  President  in  conducting  public  affairs  there  shall  bo 
a  Council  of  State,  compo-sed  of  the  following  officers  : 

•'  I.   The  Chiif  Justice  of  the  Supreme  Court. 

"3.  The  Secretary  of  Dome.-tic  Affairs,  who  shall  be  appointed  by 
the  President  an  1  hold  his  office  d.iring  pleasure. 

*' 3.  The  Secretary  of  Commerce  and  Finance,  who  shall  also  be 
appoinre  1  by  the  Presi<lent  during   ( lea*ure. 

*' 4  The  Secretary  of  Foreign  Affiirs,  who  sliall  also  be  appointed 
by  the  Pr.  sideiit  during  plea  uro. 

**  5.  The  Secretary  of  War,  who  shall  t^lso  be  appointed  ly  tho 
Pr-  sident  during  jdeasuic 

"  0  The  Secretary  of  Marino,  who  shall  also  be  appointed  during 
pleasure. 

"  7.  The  President  shall  also  appoint  a  S.^crctaiy  of  State,  to  hold 
his  office  during  pleasure. 

'"  Tlie  I'resitlent  may.  from  tim.^  to  tim?,  submit  any  mi'ter  to  tho 
discussion  of  the  Council   of  State,  and  he  may  require  the  wr.t.en 


opinion  of  anj  one  or  more  of  the  members.  But  he  shall,  in  all 
cases,  ex(M'cise  his  own  judgment,  and  either  conform  to  such  opinions 
or  not,  as  he  may  think  proper,  and  every  officer  above-mentioned 
shall  he  responsible  for  his  opinion  ca  the  affairs  relating  to  hta 
particul-r  di^parniient. 

*•  Each  of  the  officers  above-mentioned  shall  be  liable  to  impeach- 
ment and  removal  from  office  ibr  neglect  of  duty,  malversation,  or 
corruption." 

These  proposiiicns,  (fiom  which  has  been  omitted,  as  unnecessary 
to  the  prt*s<  lit  purpose,  the  assignment  of  duties  to  the  respective 
I  fficers  contained  in  ihe  original,)  were  referred  to  the  Committee  of 
Deai'. 

The  comniitte  reported  the  following  as  a  substifutc  for  the  propo-' 
sitions  subnjitied  to  it : 

"The  I  rcisideiit  of  the  United  States  shall  have  a  Privy  Council, 
which  s-liall  cn;i>ist  of  the  President  of  the  Senate,  the  Speaker  of  the 
House  of  Representatives,  the  Chief  Justice  of  the  Supreme  Court, 
and  the  principal  officer  in  tlie  respective  departments  of  foreign 
aff.iirs,  domestic  affairs,  war,  marine,  and  finance,  as  such  departments 
of  office  ^hall,  from  time  to  time,  be  established,  whose  duty  it  shall 
be  to  advise  him  in  matters  respecting  the  execution  of  his  office 
which  he  vshall  ihii.k  proper  to  lay  before  them,  but  their  advice  shall 
not  conclude  lum  nor  affect  his  responsibility  far  the  m^easures  which 
he  shall  adopt.  " 

This  report  was  again  referred  to  the  committee  of  eleven,  which 
reported  in  lieu  of  all  the  propositions  submitted,  the  clause  as  it 
stands  in  the  Constitution  of  the  United  States,  as  follows:  "And 
ihc  President)  may  require  the  opinion  in  writing  of  the  principal 
officers  in  each  of  the  Executive  Departments  upon  any  subject  rela- 
ting to  the  duties  of  their  respective  offices." 

l3uring  the  debate  on  this  clause,   Gouverneur   Morris  said,  "  the 
question  of  a  council  was  considered  in  the  committee,  where  it  was 
judged  ibat  the  President,  by  persuading  his  council  to  concur  in  his 
, •wrong  measures,  would  acquire  their  protection  for  them." 

It  seems  to  the  committee  that  the  bare  statement  of  the  facts 
attendant  on  the  preparation  and  final  adoption  of  the  clause  of  the 
Constitution  of  the  United  Stfices  above  quoted,  demonstrates  that  the 
frauiera  of  that  constitution  considered  the  question  of  establishing  a 
Council  of  State,  or  Privy  Council,  or  Cabinet,  and  deliberately  aba,n- 
doned  the  project ;  the  argument  thbt  the  President  alone  should  be 
held  responsibl  •  to  the  country  for  the  act^  of  his  administration  pre- 
vailed, and  the  creation  of  an  advisory  council  was  considered  impol- 
.itic,  bteause  it  might  afford  the  President  a  shelter  from  constitu-- 
tionai  responsibility.  The  Confederate  ConstitutiosA  contains  tae  same 
clause  in  identical  terms  ;  but  there  are  other  clauses  relating  to  the 
heads  of  d'  partments  in  our  Constitution,  which  are  not  to  be  found  in 
the  Constitution  of  the  Utiited  Stntes  and  which  will  be  presently 
aiiverted  to  in  a  different  connection. 

The  commi.tee  are,  therefore,  justified  in  the  assertion  of  the  doc- 
trine, thaS  uader  our  form  of  gov©fument,  a  cabiaet  has  lao  constitu- 


tional  existence  a?  such,  and  that  such  an    advisory  body  is  unknown 

to  the   liAv.      The    oaly   advice  which    the   hoad   of  a  (tepartmont  is 

authorized  by  the  Constitiv.ion  to  ijive  to  the  President,  i-5  an  onnion 

...  .  ^  ' 

in,  writing  v*?heri    required    of    him    upon  any   subject    rdating  to  th<> 

duties  of  his  ojfice.  The  President  cannot  constitutionally  require  of 
the  Secretary  of  State  an  opiu'on  upon  any  subject  relatiiis^  to  the 
duties  of  ihe  Secretary  of  tlio  Nivvy,  or  the  Secretary  of  '»Var,  uor 
viceversa  ;  each  sccreltiry  is  restrained  by  the  Coiistitution  to  giving  an 
opinion  a.i  to  matters  rebuing  to  his  own  office  and  to  none  other  It 
i^  manifest  the  Constitucion  never  contemplated  an  assembling'  of  the 
hearis  of  departments  in  cahin.t  council  and  a  general  discussion  and 
decision  of  State  affairs  Nor  was  this  the  early  practice  of  the 
Government  of  the  Uni'ed  States.  Duri-g  the  a  Iministration  of 
Washington  and  John  Adorns  a  cabinet  rncetiag  was  rarely  called ; 
but  opinions  in  writing  were  freqiuntly  require i  by  the  President 
and  given  by  the  respective  secretaries.  Mr.  Jefferson  first  intro- 
duced the  practice  of  holding  cabinet  consultations,  and  taking  a  vote 
as  to  the  measures  under  discussion,  permitting  their  adoption  or 
rejection  to  depend  on  the  will  of  a  mftjoriry.  And  it  was  not  unt  1 
the  fathers  of  the  Cousti^utioa  had  passed  away,  that  the  Postmaster 
General  and  Attorney  General  were  invited  by  the  President  of  the 
United  States  to  attend   Cabinet  Council. 

The  committee  conclude  that  under  the  Constitution  of  the  United 
States  the  establishment  of  Executive  Departuients  was  committed  to 
the  discretion  of  Congress.  The  principal  officers,  therefore,  in  such 
departments,  were  legislative  officers,  and  their  offices  were  subject  to 
regulations  by  Congress,  in  every  reipect  whatever,  except  as  to  the 
power  of  removal,  which  it  was  conceded  the  Constitution  conferred 
on  the  President. 

By  the  Constitution  of  the  United  States  some  officers  are  for  a 
terra  of  years  nnd  some  arc  during  f:rood  l^ehavior.  which  in  comtempla- 
tion  of  law  is  for  life;  but  all  civil  officers,  whether  holding  f.)r  years 
or  for  life,  "shall  be  removed  from  office  on  impeachment  for  and  con 
viction  of  treason,  bribery  or  other  high  crimes  or  in  sdemeanors."  At 
the  first  session  of  the  first  Congress  of  the  United  States,  the  question 
arose  as  to  the  President's  power  of  removal  of  all  officers  whose  tenure 
of  office  was  not  by  the  Constitution  itself  decbired  for  life.  The  dubate 
arose  upon  the  bill  for  establishing  the  Executive  Department,  denomi 
nated  the  Department  of  Foreign  Affairs.  'J'he  discussion  was  prin- 
cipally uirecte;!  to  the  question,  whether,  if  the  power  of  removal 
were  iufident  to  tliat  of  ap[)ointmciit,  the  Piesident  and  Senate,  and 
not  the  President  abuie.  should  remove.  The  power  of  the  President 
to  remove,  without  the  concurrence  of  the  Senate,  was  sustained  by 
both  Houses,  and  on  27th  of  July,  \760,  they  concurred  in  the 
passage  of  an  act  in  which  that  power  is  acknowledged;  and  this  act 
was  apprjvcd  by  Presi'ient  Washington. 

Many  disiingu'shed  statesmen  considered  this  legislative  decision 
of  an  important,  cons  itutional  question  unsatisfactory,  especially  as 
it  hid  been  carried  in  the  United  States  Senate  oiily  by  the  casting 
vote  of  the  Vice  President. 


It  was  known  to  be  in  opposition  to  the  opinion  of  Mr.  Madison, 
as  expressed  in  tiie  Ffdenlist,  nnd  it  w;ia  hdieved  to  huve  baea 
secured  by  the  fjrciit  pi^i-cn;ii  influence  of  Presi  lent  Washington. 

Thi.s  construction  of  ibe  Constitution  of  the  Jnited  States,  though 
depending  <>n  so  >liglit  a  foundation,  wis  acquiesce  I  in  uiril  the  with- 
drawal of  these  Siat*'?  frotn  the  Federal  Union  :  it  never  roceivetl, 
however,  t';e  sanction  of  any  Judicial  de<'isiou,  Umler  these  cireu'n- 
st;:nces,  the  framers  of  the  Constitution  of  the  Confederate  States, 
determined  to  settle  the  question  definitely,  by  inserting  fhe  clause 
respecting  vetnovals  from  office,  which  is  to  be  found  in  the  Con.stitu- 
tion.      It  IS  in  these  words. 

"•The  piineipal  officer  in  each  of  the  l^xecntive  Departments  and 
all  persons  connecti-<l  with  the  diplomatic  scrvi«-e,  m»y  he  removed 
from  office  at  the  jileasure  of  the  Pre.-idciit.  All  oiht^r  civil  officers 
of  the  Executive  departments,  may  be  removed  at  any  time  by  the 
Pre-idtiit  or  othi^r  appoiiitiii;r  power  when  their  services  are  unneces- 
8  try.  or  for  di.shone^ty,  inctpaeity,  inclliciency  or  neglect  of  duty, 
a-id  when  so  rt'isiovcd,'  the  lemoval  shall  he  reported  to  the  Senate 
t  )gether  with  the  reason  therefor.      Art    2.  sec.   2.  clause  3. 

These  ohservations,  as  to  the  power  of  removal,  have  been  madj 
merely  for  the  purpose  of  establishing  tiie  fict.  that  the  insertion  of 
the  removal  ciau>e  in  our  constitution,  was  intetuled  lo  settle  a  grave 
constitutional  dispuiO  as  to  the  power  of  the  Pre-ident  to  remove  an 
executive  offitrer  without  the  concurrence  of  th',-  Senate,  as  well  as  to 
r>istrain  him  in  the  exercise  of  that  power,  as  to  all  the  civil  officers, 
except  those  connected  w:th  the  diploma' ie  service  and  the  principal 
officers  of  the  Executive  departments.  This  (da'ise  wa-<  not  intende<l 
to  abridge,  ano  does  not  abridge,  (he  legiditive  discretion  of  (yungress 
in  reguhitmg  the  tenure  of   all  legisl.itive  offices  created  by  if.. 

To  create  an  office,  and  regulate  its  tennte.  is  an  ex  icive  of  legisla- 
tive powers;  to  remove  an  officer  is  an  (Xicifiiv.  net.  The  {)o\ver  to 
fix  the  teiiuie  of  office,  is  as  distinct  and  difleieiit  from  the  f)i)\ver  of 
removal,  as  is  the  power  to  remove  from  the  power  of  impeciclnnent. 

The  power  of  impeach  nent  is  exereise<l  only  in  cases  of  treason, 
bribery,  or  other  high  crimes  and  misdemeanors  ;  the  power  of  removal 
may  be  resorted  to  for  inefficiency,  incapacity  or  neglect  of  duty,  and 
both  poweis  may  be  exef'dsed  to  remove  an  officer,  whether  he  holds 
his  office  for  a  tertn  of  years,  or  at  the  will  of  the  Executive,  trro  far, 
then,  as  the  principal  <  fficers  of  each  of  the  Executive  flepartments  arc 
concerned,  the  Conl'edera-te  Coristituiion  has  ma,ile  no  cliange  as  to  their 
tenure  of  office  ;  ii  has  imn-' ly  expies>ly  de(dared,  what  was  tacitly 
included  in  the  Consiituiion  of  tiie  Utiited  Statis,  to  wit:  that  they 
may  be  removed  from  offi(e  at  the  j'ha^uie  cf  the  Tresidcnc  At  'he 
comniencemetjt  of  the  tjuvernment  of  tlif^  United  States  the  tenure  by 
which  all  exciutive  officrrs  held  ili.-ir  (iffiies,  was  a  tenure  at  the  will 
of  the  President,  bec  msc  the  laws  creating  the  offires  w  d  not  limit 
the  terra  of  office.  Such  was  the  ca.se  net  only  as  to  the  heads  of 
departments,  but  :.8  to  collectors,  marshals,  district  attorneys,  and 
other  officers.  On  the  loth  ^lay,  1821).  the  Congress  pasrcd  a  law, 
declaring  that   the  commissions   of  all    marshals,  collectors,  district 


attornej^s,  &c.,  then  in  offif^e,  shouM  be  va''.ated  at  a  certain  date,  and 
thiMcafier  the  tenure  i.f  thcL^e  ofTicos  shouhl  'o  for  fair  years,  lemova- 
ble  at  the  pleasure  of  the  President  If  the  Congress  h;'<i  <!•  emod  it 
expediant,  the  hjads  of  de[)arrtneriLs  might  have  be"n  included  in  the 
act  o  l'2i»,  for  certainly  (he  Constitution  of  the  United  States 
imposes  no  restraint  on  the  lej^islative  will  as  to  the  term  of  office  of 
the  principal  officers  of  the  Executive  Department.  The  power  of 
Congress  undi^r  the  Con-titation  of  the  Unite  1  Sates  to  affix  a  term 
to  thj  office  of  lnar^h;^l,  or  to  the  office  of  Secret  ry  of  Scale  is  the 
same;  both  are  legislative  creations,  to  bo  moulded  subject  to  the 
legislative  will,  except  as  to  the  power  of  removal  on  the  part  of  the 
Executive,  which,  being  conferred  by  the  Cjustitution,  cannot  be 
iiupiired  by  the  legislature. 

When  an  office  is  ereate'l  with  a  tcnur.>  for  a  term  of  years,  it  is 
the  .ntcntion  of  the  legislator  that,  the  officer  should  retire  from  office 
at  a  definite  period,  by  virtue  of  tli".  Icgistativ:  wW,  :ind  wU/iouf.  tke  in- 
ter/joillioii  i)f  th^,  Exeaifivp  ;  and  this  constitutes  the  difference  between 
an  office  »\hose  tenure  is  foi-n  teim  «if  years.  reiniiva')le  at  the  pleasure 
of  the  President,  and  an  oihee  held  at  tlie  will  of  the  President;  the 
latter  can  never  become  v.  cint  except  hv  death,  resigiia'ion  or 
the  interposition  of  executive  p)wer.  It  is  very  important  th  it  the 
tenure  of  office  of  all  <lisbursing  officers  should  be  for  a  term  of  years, 
in  order  to  secure  a  periodical  investigition  an  I  settlement  of  their 
accounts  and  the  renewal  of  their  bonds. 

In  confirmition  of  t!ie  opinion  expressel  as  to  the  constitutional 
power  of  Congress  to  limit  the  term  of  office  of  the  heals  of  depart- 
ment-!, it  will  l»e  observed,  tint  in  the  pr'>j  jct  for  a  privy  councMl, 
submitted  by  Gouverneur  Mori  ix  to  the  convention  of '87,  he  expressly 
declares  that,  tfie  term  of  ciffi  e  of  the  secretaiiei  sliall  be  (hiruis^  the 
]jkii->uic  cf  (he  Pres'dinf.  ;  when,  however,  the  Coinmiitee  '\\  Detail  re- 
port back  the  pioposition,  the  tenure  of  office  is  omitted,  an!  the 
establishment  of  the  proposeil  depntments  is  expressly  left  to  the  dis- 
cretion of  Congress  without  limitati  tn,  except  as  to  the  number  and 
denomination  of  the  departments. 

In  the  cl.iu'^c  of  the  Constitution  actually  adopted,  even  that  limita- 
tion is  exclmled,  and  the  whole  subject  is  committed  to  the  will  of  the 
Legislative  Depaitnient  of  the  Government. 

The  power  of  Coi  gi ess  being  conceded,  the  policy  of  exercising 
the  power  of  limiting  by  law,  the  'luration  <»f  the  term  of  office  of  the 
heads  of  departments,  remain  to  be  consiiierel.  If  their  i)e  no  limita- 
tion whatever,  the  incoming  Presi  lents,  by  adopting  the  heads  of  de- 
partments of  the  out  going  Presidents,  might,  for  nany  years,  retain 
in  office  individuals  obnoxious  to  the  States,  as  reproseniel  in  the 
Senate.  The  expiration  of  the  term  of  office  cf  the  President,  does 
not,  of  itself,  Ojieratc  the  dismissal  nf  the  secretaries  selected  by  him. 
They  reini»in  in  office  until  <lisniis-ed  by  himself  or  some  succerding 
President.  It  is  certainly  disiialile  that  tlie  Senate  should  have  the 
power  of  revising  ihe  conduct  of  these  olli  ers,  at  least  at  tlie  expira- 
tion yf  the  term  oi  offiee  of  each  PiCsidenr.  To  such  a  proposition 
no  objection  can  be  perceived.     Wiiy  should  the  opportunity  for  re- 


8 

vision  be  so  long  delayed  ?  It  is  suggested  th^t  theae  officers  are  but 
the  organs  of  the  Executive,  and  a  revision  of  their  conduct,  is  but 
an  arraignment  of  tlie  President.  This  would  be  true,  if  the  heads 
of  departments  \\e\e  solely  the  organs  of  the  Executive  will,  but  sutth 
is  not  the  case;  some  duties  are  imposed  on  them  by  the  Constiiution 
and  other  and  more  numerous  and  perhaps  more  important  duties  are 
prescribed  by  law.  In  the  case  of  Morburyi'5.  Madison,  (I  Cranch,) 
the  Supreme  Court  of  the  United  States,  through  C.  J.  Marshall,  the 
organ  of  the  court,  says :  "It  is  the  duty  of  the  Secretary  of  State 
to  cohform  to  the  law,  and  in  this  he  is  an  officer  of  the  Uniced 
States,  bound  to  obey  the  laws.  He  acts  in  this  respect,  as  has  been 
very  properly  stated  at  the  bar,  under  the  authority  of  law  and  vot  hy 
the  insiruit'ons  of  the  Prcvide?if.^^ 

Our  Constitution  provides  that,  "  Congress  shall  appropriate  uo 
money  from  the  treasury  except  by  a  vote  of  two-thirds  of  both 
houses,  taken  by  yeas  and  na\s,  wikss  it  be  askid  anl  estimated  for  by 
some  one  of  the  hads  of  deparfmenis  and  submitted  to  Congress  by  the 
President  "  This  is  an  important  and  delicate  constitutional  duty. 
The  Secretary  must  ask  an  estimate  for  money  and  the  President  must 
submit  the  estimate,  before  a  ra.ijority  of  Congress  can  m-ake  an  ap- 
propriation. In  the  performance  of  this  duty,  the  head  of  the  depart- 
ment is  not  the  organ  of  the  Executive  will,  but  is  a  guardian  of  the 
treasury  created  by  the  Constitution. 

The  President  may  require  "  the  opinion,  in  writing,  of  the  princi- 
pal officer  in  each  of  the  Executive  Departments  upon  any  subject 
relating  to  the  duties  of  th.-ir  respective  offices."  It  will  be  observed 
that  the  Constitution  here  provides  for  an  opinion  in  writing.  The 
secretaries  are  thus  made  the  constitutional  advisors  of  the  Pre.'^ident 
on  any  subject  relating  to  tho  duties  of  their  resp'Ctive  offices. 
Why  is  the  opinion  required  to  be  in  writing  ?  Evidently  to  subje:t 
the  officer  giving  it,  to  re.spon.sibiliry  as  its  author. 

This  responsibility-  is  not  to  the  Pi-esideut  alono,  a.=  would  be  the 
case  were  he  the  mere  organ  of  the  President's  wili,but  to  the  country 
also,  ibr  the  truth,  justice  and  piopriety  of  the  opinion  given. 

The  second  section  of  the  act,  to  establish  the  Treasury  Depart- 
ment, enumerates  a  variety  of  duties  to  be  performed  by  the  Secre- 
tary of  the  Treasury,  and  specially  provides  that  it  shall  be  hi<  duty- 
'•  to  make  reports  and  give  imbrj.ii-ition  to  the  Cottgress  or  the  Presi- 
dent in  person,  or  in  writing,  as  may  be  require!  concernin,:;  all  mat- 
ters referred  to  him  by  the  Congress  or  the  President,  respectively, 
and  ger;erally  to  perform  all  such  services  relative  to  the  tinances, 
and  all  such  other  duties  as  h)  li.ay,  by  law,  be  directed  to  perform." 
So  far  as  this  officer  is  concerned,  most  of  his  duties  are  prescribed 
by  law,  and  as  to  suoh  duties  ho  is  an  officer  of  the  law,  and  not  a 
mere  agent  of  the  President.  Such  is  also  the  case  so  far  as  tho 
Postmaster  General  and  Attorney  General  are  conce  ned.  ■it  is  true 
that  the  law,  establishing  the  State,  War  and  Navy  Departments, 
contemplates  that  the  heads  of  these  departments  shall  act  under  the 
instructions  of  the  President,  yet,  in  other  statutes,  many  duties  are 
imposed  on  the  Secretary  of  War  and  the  Secretary  of  the  Navy, 


u 

which  ren-ier  them,  as  to  those  duties,  the  officers  of  the  law  and  not 
the  mere  organs  of  Executive  will. 

It  seoins,  therefore,  to  the  Committee,  that  as  to  the  duties  imposed 
by  the  Constitution  or  the  laws  on  the  heads  of  departments,  the  con- 
duct of  those  oScers  mvy  very  properly  become  the  subject  of  scrutiny 
and  revision  without  infringmeut  on  the  constitution  il  independence 
of  the  Executive. 

The  Constitution  contemplates  that  the  Senate,  as  the  representa- 
tive of  the  States,  shall  be  consulted  In  the  appointment  of  all  th:> 
important  officers  of  the  Government.  This  power  was  given  to  the 
Ser  ate  as  a  check  on  Executive  cipricc.  The  Setiate  is  not  required 
to  assign  any  reason  for  the  rtjection  of  a  nomination,  nor  is  the 
]*resid«  lit  bound  to  communicate  to  the  Senate  the  motives  inducing 
him  to  make  a  nomination.  It  would  not  be  considered  a  violation 
of  the  spirit  of  the  Constitution  for  th<'  Senate  to  n  ject  a  nomination 
le<  Hui-e  the  person  nominated  w  is  distasteful  to  the  public.  If  a  person 
Eo  nommatMl  was  known  to  be  negligent  or.  in  any  manner,  inefficient,  it 
vould  be  the  duty  of  the  Senate  to  r«;)('ct  bis  nomination,  V\  by,  theic- 
fore,  i-liould  a  law  be  considered  objectionable  which,  from  time  to 
t  me.  affor«'ed  an  opportunity  to  the  constitutional  adviser  of  the 
pHhidt  i,t.  in  the  exercise  of  his  appointing  power,  to  revise  the  con- 
duct of  offict  rs  ?  If,  on  the  expiration  of  the  term  of  an  olh-'er,  the 
I'lfsidt^nt  desurs  to  continue  Liui  in  office,  he  can  re-nominate  him  and 
aic(  ni|  lisb  his  object. 

Ihc  term  of  office  of  the  President  of  the  United  States  is  for  four 
years ;  that  of  the  Tresident  of  the  Confederate  States  is  for  six 
yoarB.  Under  the  Government  of  the  United  States,  obnoxious  or  in- 
tffiiitnt  secretaries  could  not  be  retained  in  office  for  a  longer  period 
than  lour  voars,  because  the  reiroval  of  the  President  by  the  election 
of  his  successor  secures  a  change  of  the  heads  of  departments. 

The  evils  resulting  from  in  fficient  administration  of  the  Execu- 
tive Departments  in  a  time  of  piofound  peace  might  well  \e  borne  for 
four  jears  without  much  detriment  to  the  [)ublic  inttvest.  The  dura- 
tion, however,  of  such  evils  ior  a  period  of  six  years  would  render 
them  intolerable  and  pernicious  especially  in  time  of  war.  The  object 
of  this  bill  is  to  arrest  inefficiei  t  administration  at  the  expiration  of 
two  years  in  case  the  head  of  a  department  should,  in  the  estitnation 
of  the  country,  prve  himself  deficient  in  the  qualities  necessary  to  a 
vigorous  and  intelligent  discharge  of  the  duties  imposed  on  him  by 
law.  As  to  those  duties,  the  President  has  not  Iteen  constituted  by 
the  Corstitution  the  sole  ji^dge  of  the  administrative  capacity  of  the 
heads  of  departments.  For  the  efficient  discharge  of  .'uch  duties  the 
resf  onsibility  of  the  head  of  a  department  is  two  fold;  he  is  responsi- 
ble to  the  President,  who  can  exercise  the  power  of  removal  ;  and  he 
is  responsible  to  the  people  who  can  only  exercise  their  power  through 
the  legislative  department  of  the  Government  by  limiting  the  terra  of 
offiee,  and  requiring  his  nomination  to  be  again  subjected  to  the  scru- 
tiny of  the  Senate.  In  no  other  mode  can  responsibility  to  the 
feople  for  infficiency  be  securtd,  because  an  officer  cannot  be  im- 
peached except  for  tieason,  bribery  or  other  high  crimes  and  misde- 


10 


mennor.^..  This  double  ri'^pon-^ibility  comnion'ls  itseK,  because  of  cho 
Balutii-y  inHiuiice  it  is  calculated  to  fxerciso  on  the  oTr'er.  When  he 
IS  awar-'  that,  in  order  to  r  tnin  liis  oHire.  its  duties  'uust  be  dis- 
char^' (1  no»  only  to  tlio  satisfiction  of"  the  Executive,  who  in>y  be  le- 
nient, but  also  to  the  satisfaction  of  the  States,  as  represented  in  the 
S'-n:i';'  his  attention  will  he  stiunlated  an'l  his  ener^^ies  quickened. 
T fi  •  eX'Tci^'e  of  this  p"wer  by  'Aw  Senate  cunnot  inrerrupt  or  •  inbarass 
the  gi'iii-rii  policy  of  the  Exerurive,  because  th  it  pol  cy  will  be  iin- 
pr-sed  on  the  Guvernuicnt  by  any  head  of  depirt'oent  who  tnav  b'» 
ii\»miiMt.d  by  the  Preside'nt  and  confirrnod  by  the  Senite.  Trie  S  n- 
utc  c<-  d  I  II. tt  expect  to  defeat  the  ireneral  po  icy  of  the  E<eeu  ive,  by 
T«*j"Ciiii;X  his  iiouiination,  fur  the  rei>>on  that  aiiy  one,  s<  lected  by  te 
Presi  'cut  niii-t  necess.irily  r- fl'ct  his  policy  ;is  the  orj^iii  of  hit  will. 
The  i-.\'jt«M  it'iiee  of  the  old  <Tovern(iieiit  has  d<Mnonstrat..'d  that  tiie  ['resi- 
dent ha-  been  allowed  to  select  the  heads  of  Departments  a -ceptable  to 
liiiii  a-;  rxj,oii,.'nts  of  his  general  policy,  notwithst  mding  thitpo'icy 
has  fr("|ucntly -been  opposed  to  the  views  of  a  mijoMry  of  the  Senate. 
Theie  1-  no  reasi)n  to  supj)ose  that  the  Coiifeder;»te  Sen  ife  vvould  pur- 
sue a  diff.-rent  cours*.  Indeed,  the  provision  in  our  Consitution, 
which  i(M|.iii  i-s  appropriations  of  money  to  be  a.-ked  for  and  estima- 
ted by  ih  ht;id-t  <d'  deparriuen's,  in  order  to  secure  thidr  passaore  by 
a  uiajiri  y  i>f  (Jongress,  op 'rates  as  a  bridle  in  the  Inn  Is  of  the  IVesi- 
dentoMaii  unruly  Seiiite,  so  far  as  to  restiain  it  from  resui-rinj;  to  fac- 
tiou-i  r' j»-ctions  of  tiis  nominations.  If  the  S-'nate  rt'jecte<l  the  nora- 
natirtn-  of  tin*  Kxecutive,  because  it  disapproved  of  his  policy,  it  would 
he  driven  to  reject  any  pernon  i«elected  by  the  President, ami  the  result 
would  !  e  a  ili.»orgniiiz.ition  of  thi  Goverment,  because  of  the  biilure  of 
apfito  riafions.  l>e>id»'s,  if  a  supposed  fictious  rejection  of  all  nomin- 
atioii^  be  coii>idere  I  an  oljection  to  the  pas>^age  of 'his  bill,  th  jargumgnt 
ajiplio  as  Will  to  oiiginal  nominations  ss  to  reiiominations.  It  is, 
theiefur*'.  lather  an  argument  again.st  the  constitutional  provision  re- 
quiiiiig  tlieioncurreiiceof  t'^e  Senate  in  appointments,  than  against  the 
bill  wbi.l;  roll  t-iii  jdatts  .i  frt-quciit  exercisc  of  the  Constitutional  luthor- 
ty  o'  the  Senate.  Jt  is  urged,  however,  that  this  bill  will  subject  the 
Presi  'ent  to  In-  control  of  am  ulligarchy  in  the  Senate  If  this  he  true, 
it  is^  an  cljt^cnoii  to  the  Constitution  itself,  because  that  instru- 
ment has  C(.ln^*^iluted  the  Senate  a  patt  of  the  appointing  power,  by 
requiring  the  Pr<  sident  to  subu-it  hss  nominations  to  it  for  advice  and 
coi.s«Mit.  TheSenue  is  the  only  constitutional  check  o;.  the  Eexecu- 
cutive  will  in  making  app.untu.ents,  and  if  that  check  be  withdrawn, 
none  other  can  be  inti-rjio.-ied.  The  bill  now  reported,  m(>rely  pr  >vide3 
for  a  healthful  exercise  of  this  constitutional  check,  and  those  who  ob- 
ject to  it  on  the  ground  alleged,  would  seem  to  tavor  the  with- 
tliawal  of  :ill  lestiaint  on  Executive  pleasure,  by  repealing  that 
eliuse  (d  the  Coiistituiitn  requiring  the  concurrence  of  the  Senate  in 
Executive  !i[);  ointments.  This  biH,  if  passed,  will  ptevent  the  reten- 
tion for  a  longer  period  than  two  years  of  the  I  ead  of  a  departmen*; 
who  lUHy  betoiue  obnoxious  to  the  country.  The  accomplishment  of 
this  (deject  is  certainly  not  incon>*istent  with  our  tVrm  of  government. 
Mr.  Burke  truly  says,  *•  it  would  be  dreadful  indeed  if  there  was  any 


11 

power  in  the  nation  capable  of  resisting  its  unanimous  desire,  or  even 
the  desire  of  any  very  great  and  decided  majority  oi  the  people.  The 
people  may  be  deceived  in  their  choice  of  ati  object.  But  I  can  scarcely 
conceive  any  choice  they  can  mike  to  bo  s<)  v-'ry  mischievous  as  the 
existence  «>f  nny  humm  force  capable  of  re-isting  it  " 

It  m>y  bo  urged  th-it  the  prop  »s'jd  m3i^iire  i-«  novel,  and  therefore 
objec'ionnble  This  ohjci;tion  applir-s  to  all  politic:il  rt  forms,  and  is  but 
the  usu:jI  nppeal  to  the  wisdom  of  our  ancestors,  made  by  those  who 
oppose  all  improvements  in  government.  While  respecting  the  ex- 
perience of  our  predecessors,  the  comn.ittee  entertain  no  scpcrstitious 
reverence  for  tfie  p  ist.  In  the  present  state  of  our  knowle  Ig?,  polit- 
tics,  80  fir  from  being  a  science,  is  one  of  the  most  backward  of  all 
the  arts.  Politicinns  should  modify  their  schemes,  not  according  to 
the  notions  of  their  ancestors,  but  to  the  nctn:il  exigencies  of  the 
timos,  for  men.  urged  by  a  sense  of  their  own  progress,  are  growing 
weary  of  the  i<lle  talk  about  the  wisdom  of  their  ancestors.  For  these 
reasons  the  majority  of  the  Judiciary  Commitree  have  determine<l  to 
recommend  to  the  favorable  consideration  of  the  Senate  the  bill  now 
reported. 

TIIOS.  J.   SEMMES, 
On  bJi't'f  of  the  Committee, 


